Black Elk and the Bond Proceeds – Another Platinum Bait-and-Switch

Law360, New York (May 30, 2019, 9:59 PM EDT) — Jurors in the securities fraud trial of former top Platinum Partners executives on Thursday heard of how co-founder Mark Nordlicht floated plans to wield control over bonds of the hedge fund’s portfolio company Black Elk Offshore Operations LLC using Platinum affiliates, which prosecutors say was part of a scheme to defraud the oil and gas driller’s bondholders.

Prosecutors say Nordlicht, former Platinum co-chief investment officer David Levy and others used their secret sway over the majority of $150 million in Black Elk bonds to funnel the bulk of proceeds from a sale of the company’s assets back to Platinum, ahead of bondholders who had priority to the funds.

During the testimony of Black Elk’s former outside counsel at BakerHostetler, W. Robert Shearer, the jury heard of how a group of independent bondholders in late 2013 were threatening to push the bonds into default after Black Elk violated the indenture’s terms by exceeding its limits on capital expenditures.

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Platinum Partners – Nordlicht, Levy and SanFilippo and A Crime So Complicated No One Understands it

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If Mark Nordlicht, David Levy and Joseph SanFilippo are Acquitted, it will not be Because no Fraud was Committed but Because the Whole Story was Too Confusing, Even for Defense Attorney Baez

Jose Baez is representing Mark Nordlicht in Nordlicht’s fraud trial. Baez is a remarkable and seasoned attorney. He knows the law. He knows his jury. He tests the boundaries of his questions with a bright smile; and he knows how to defend his client with the sheer will of his conviction.  As defense counsel, Baez draws blood from stones. He pulls rabbits from hats. He colors the wings of butterflies while in mid flight; and he sets a scene creating doubt like a Picasso with a paintbrush shading his canvas.

So long as there is doubt, there cannot be a conviction. And the intricacies of the Platinum Ponzi Scheme were so savvy, we would be surprised if there were even a modicum of steadfast clarity for the jurors. We can only hope the government has some more tricks up its sleeves.

Unlike a murder trial where there are black and white lines drawn with very few grey areas, fraud is grey and murky. The waters one needs to navigate to convict a fraudster require a periscope that can see through a curved mirror and a jury that can see through the clouds.

Baez and the counsel for co-Defendants Levy and SanFilippo picked their jury well, not a jury of Platinum’s partners’ peers, but a jury of African Americans and young adults. There may not be a Jew among them. It is hard to tell. 

And the subject matter of the Platinum case, along with the Jewish identity associated with Platinum’s main partners and its investors is ripe for confusion, so much so that today even Baez seemed to falter.

Baez began his cross examination of the witness, Daniel Mandelbaum a former CFO for Platinum, by asking whether he was Hasidic. Mandlebaum responded with an unequivocal, “No”. Baez then attempted to somehow change Mandelbaum’s response by associating Hasidic with a wife covering her hair and a man wearing a kippa. Mandelbaum was almost offended.  A jury, like Baez, would not understand the distinction between Mandelbaum’s Orthodoxy and Hasidim. But the word “Hasidic” carries its own subliminal messages. 

Baez was playing on anti-Semitisim and associations and as such setting the stage for a cultural and religious sort of confusion.

The Platinum Partners’ partners are largely modern Orthodox. Many of them live in the same neighborhood. They share the same simchas (joyous events), attend synagogue together, break bread together raise their children together, gossip with the same people, sit shiva when someone dies and keep up with one another’s increases in wealth. There are very few secrets within this community, something the jury, like Baez will not understand.

And, the investors like the partners were community members, a part of the larger Jewish Zeitgeist, only too eager to hand over their money to Nordlicht whom they trusted. That trust defined the nature of the investment and by implication, the seriousness of the crimes. They were defrauded, and sadly blinded by their own sense of community. 

The investors were wooed by Mark Nordlicht and Murray Huberfeld, David Bodner and David Levy so much so that they did not see the signs, the patterns, the inconsistencies, the numbers and returns that made no sense. They were victims, Jewish or otherwise. Mark Nordlicht knew his craft and his audience; and he dictated and controlled the documents and hence the grift. For Baez, the documents protected Platinum and Nordlicht because they were a measure of “disclosure” a waiver of sorts. For us, they were confusing and confused. They represent an admission of guilt and by deviating from market standard, the fraud committed was all the more criminal.

The overly complicated investment documents, nuanced to give Nordlicht control over every aspect of the investment, including discretionary redemptions,  a/k/a proprietary redemptions were part of Mandelbaum’s discomfit. As a matter of general business course, when redemptions are to be distributed, they are done pari passu with other members of the class of investors requesting redemptions.

By their very nature, redemptions should not be discretionary, not even for a Holocaust survivor. One of the redemptions Nordlicht did satisfy was to a Holocaust survivor. This was not done out of the goodness of Nordlicht’s heart but out of a knowledge that he should not have taken the man’s money in the first place. That’s a story for another day. The goodness of an investment manager’s heart, or lack thereof, is not something that should play into a privately held investment vehicle.  Suffice it to say, proprietary redemptions of the sort advertised in the Platinum Partners’ private placement documents were inherently fraudulent insofar as they provided preferential and discretionary treatment. As such, investors of the same class were not pari passu with others of the same class. That is, by its very nature, a fraud. 

As Baez rightfully pointed out many times, Nordlicht had discretion. NORDLICHT HAD DISCRETION. But he also had the ability to move money from one fund to another virtually unhindered. It was all a shell game.

Mandelbaum was, during his shortlived employment with Platinum, savvy enough to see the problems, Mark Nordlicht controlled everything. There were too few checks and balances.

Baez emphasized that point by sharing screens and screens of Platinum’s various documents. But in his cross examination he stumbled over the mere suggestion that the level of discretion provided to Nordlicht was anything but acceptable. The purpose of disclosures and documents in the securities world is in short “fairness.” Investments, win or lose, high risk or low risk, are supposed to be, at the very least, fair. A jury will never understand that and Baez, as a defense counsel doesn’t have to.  

Baez asked Daniel Mandelbaum about a loan from one Platinum Partners fund to another, demanding to know whether Mandelbaum had the right, during his tenure, to question the propriety of that loan. Sixteen percent (16%) in 2015 was too high. Mandelbaum responded that generally the lender gets to decide the interest rate. The Lender was Platinum a/k/a Nordlicht. The Borrower was Platinum a/k/a Nordlicht. There was no interest rate that would have made legal sense given the financially incestuous nature of the funds and their investors. Sixteen percent was simply a shnorer-type number. Nordlicht might have wanted to choose 18% instead.

At the end of the day, Nordlicht and Platinums’ partners have likely convinced themselves and anyone who will listen that they are being wrongly accused. Why us?  The defense counsel have collectively done a splendid job keeping Murray Huberfeld’s name from being mentioned at Nordlicht’s trial. When Huberfeld is mentioned, the defense insures that his 30 month conviction for bribery is not disclosed to the jury. While Federal rules of evidence may preclude this information from being conveyed to the jury, the fact remains, it was this bribe that tipped the FEDS off to the nefarious and criminal behavior of Platinum Partners’ partners. Keeping the jury in the dark will not change this fact. 

In the event that Nordlict and his fellow Defendants are acquitted, which is not unlikely due to the complexity of the case and the ignorance of the jury, it will not be the last time that the house wins. The house always wins! 

Ultimately, the very fact that Nordlicht had the discretion in all things Platinum, a point drafted into Platinum’s funds’ documents, and emphasized repeatedly by Baez, should tell the whole story. But by and by, the jury gets to decide. We fear that Baez painted a very confusing picture by his own lack of understanding of the documents themselves. It was likely quite intentional. He is a gifted attorney. And if the Defendant’s are acquitted, he will have graduated from the Sorcerer’s apprentice to the Sorcerer himself.

We give Baez credit which cannot be understated. If you are confused, you are supposed to be.  If not, it’s a shame you are not sitting in the jury box.

 

 

And the Very Platinum Truth Comes Out [Law360]

Ex-Platinum CFO Troubled By Business Methods, Jury Hears

Law360, New York (May 23, 2019, 8:38 PM EDT) — A former chief financial officer of Platinum Partners on Thursday told a New York federal jury weighing the fate of the hedge fund manager’s former top executives of his unease with the company’s problematic business practices and lack of cash to fund operations and pay back investors.

Daniel Mandelbaum, 42, took the witness stand in the late afternoon in the monthlong trial of Platinum founder Mark Nordlicht, former co-chief investment officer David Levy and ex-chief financial officer Joseph SanFilippo, who stand accused of defrauding investors.

Mandelbaum, who said he worked at Platinum for a scant 9 1/2 months, testified of how he became “very uncomfortable” with Platinum’s way of doing business after taking the CFO job in late 2014 at the urging of his friend and Platinum chief operating officer Naftali Manela, who pled guilty in 2016.

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ADDITIONAL INFORMATION:
Re: The hiring by Platinum of Daniel Mandelbaum was highly regarded and announced:

NEW YORK–(BUSINESS WIRE)–Platinum Partners, a New York-based hedge fund adviser, is pleased to announce the appointment of Daniel Mandelbaum to the role of Chief Financial Officer. Bringing with him sixteen years of hedge fund experience, Mr. Mandelbaum is responsible for overseeing the firm’s financial and reporting functions.

“We are delighted that Daniel has joined Platinum, adding technical operations knowledge that will both enhance and strengthen the firm’s financial infrastructure”

Tweet this“We are delighted that Daniel has joined Platinum, adding technical operations knowledge that will both enhance and strengthen the firm’s financial infrastructure,” said Mark Nordlicht, Chairman and Co-Chief Investment Officer of Platinum Partners. “His appointment is indicative of our commitment to maintaining a superior leadership team in order to meet the evolving needs of our investors.”

Prior to joining Platinum Partners, Mr. Mandelbaum served as Chief Financial Officer and Chief Operating Officer for Royal Capital Management, LLC, a New York City-based fundamental long/short equity firm, where he worked for thirteen years. During his tenure he was responsible for overseeing all business development as well as financial, tax, operational and compliance issues.

Mr. Mandelbaum is a Certified Public Accountant, and began his career in Capital Markets group for PricewaterhouseCoopers where he focused primarily on auditing hedge funds.

About Platinum Partners

Platinum Partners (the “Firm”) is a New York based investment management group with more than $1 Billion in assets under management. The Firm was founded in 2003 by Mark Nordlicht, an investor with over twenty years of experience in the asset management space.

Contacts

For Platinum Partners:
Cary Ruterman, 212-279-3115 ext. 123
cruterman@prosek.com